1986 PLP 1408 (MLD)

(d) Arbitration Act (X of 1940)‑‑ ‑‑‑S.20‑‑Reference of dispute to sole arbitrator‑‑Dispute between parties was referred to sole arbitrator named in arbitration agreement with direction to arbitrator to make award within period of four months from day of entering upon reference by such arbitrator. Bilal Khawaja for Plaintiff. Salahuddin for Defendant No.1. Date of hearing: 29th April, 1986. This is an application under section 41 of the Arbitration Act read with section 151, C.P.C. By this application the plaintiff seeks an injunction to restrain defendant No.1 from (i) taking any action regarding removal of equipment, tool and plant by the plaintiff's firm from the site work, (ii) retention of Mr. Muhammad Riaz as duly authorised Resident Director of defendant. No.1, and (iii) continuation with the operation of Account No.5599 with the United Bank Ltd.

2. Regarding the first part of the, prayer contained in the application, i.e. the removal of equipment, tool and plant by the plaintiff's firm for the site of work, I enquired from the learned counsel for the plaintiff to show me through the agreements or other document on record as to the details of the said machinery, plant and tools in respect of which he wants mandatory injunction from the Court. He simply reffered to clause (1) of the supplementary agreement, date 17‑11‑1985, wherein merely responsibility of carrying out the work a site, has been accepted by the defendant No.1. This does not 'lead t conclusion that there is machinery, tools or other equipments lying a site which are owned by plaintiff No.1. Moreover, there is no list o the alleged equipments etc. They are, therefore, not ascertainable. I is, however, alleged by Mr. Salahuddin, that the execution of the work has been taken over by defendant No.1, and their own machinery, tools and other equipments are on the site. In any case, I am afraid, that a mandatory injunction cannot be issued in the terms, it has been asked for the reason stated above.

3. As regards the second prayer with regard to the retention of Muhammad Riaz at site as duly authorised Resident Director of defendant No.1. Mr. Salahuddin invited my attention to the order, dated 17‑4‑1986 in Suit No.122 of of 1986, passed by my learned brother Mr. Justice Saleem Akhtar, which as admitted by the learned counsel for the parties before me, relates to the two projects, including the one involved in the suit before me. Mr. Salahuddin submits that Mr. Muhammad Riaz, who is plaintiff in that Suit (No.122/1986) has stated through his counsel, who also appears in this case for the plaintiff that "he has‑ no interest in carrying on the execution and administration but his interest should be protected." On my quarry, Mr. Bilal stated, that the observation made in the said order at page 14 does not concern with the project in the present suit. He further submitted that the statement is to be read in the context of paragraph 10 of the agreement between the said Muhammad Riaz and the defendant No.1. I find that the said agreement' in the other suit and the injunction application related to two projects including the one involved in the present suit. It cannot, therefore, be rightly asserted that the statement does not concern with the project in the suit. In any case, since Muhammad Riaz is not a party before me, it will not be proper to order for the retention in his absence and without any request by him. Even otherwise to pass such an order does not seem to be justified as the balance of convenience does not lie in his favour.

4. Regarding the third prayer, about the continuation of operation of the account maintained with the United Bank Limited, Mr. Salahuddin drew my attention to paragraph 7 of his counter‑affidavit, wherein it has been stated on oath that the account has been closed. In view of this, I am afraid that no mandatory injunction can be issued at this stage asking the defendant No.1 to reopen the said account by granting order of status quo ante'. The application is, therefore, dismissed.

5. During the course of arguments the learned counsel requested that main case may also be heard today. By consent, therefore, the main application under section 20 of the Arbitration Act, 1940, is taken up. The learned counsel for the parties agree to file the main agreement, dated 10‑2‑1984 together with the two supplementary agreements, dated 10‑2‑1984 and 17‑11‑1985 (photostat copies whereof are already on file), in this Court, and refer to entire dispute between the plaintiff and defendant No.1 to Mr. Justice (Retd.) Dorab F. Patel for arbitration in accordance with the provision of clause 13 of the agreement, dated 10‑2‑1984. Mr. Justice (Retd.) Durab F. Patel is, therefore, appointed asp Sole Arbitrator. The award shall be made within a period of four months from the day of entering upon the reference by the learned Arbitrator. The Office is directed to notify the Arbitrator immediated on Court motion. In view of the fact, .the learned counsel have agreed to refer the matter to the learned Arbitrator, the application under section 2 of the Arbitration Act is granted. Now, there remains nothing in the suit, which stands disposed of accordingly. The suit is dismissed agains defendant.No.2 as having become infructuous. A.A. Order accordingly.